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United States v. Butch

Conviction and sentence affirmed; evidence of prior criminal activity was not overly prejudicial, and court gave the requisite limiting instruction to the jury; ultimate sentence imposed did not exceed the prescribed statutory maximum.

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Submitted Under Third Circuit LAR 34.1(a) April 24, 2001

Joseph Butch challenges his conviction following a jury trial in the United States District Court for the District of New Jersey (the “District Court”) on one count of violating 21 U.S.C. S 846 by conspiring to distribute and to possess with intent to distribute oxycodone, a Schedule II narcotic controlled substance, contrary to 21 U.S.C.S 841(a)(1). He also challenges the sentence imposed by the District Court.

Butch alleges that the District Court (1) impr operly admitted evidence of prior thefts of oxycodone at trial, (2) erred in determining the applicable sentencing range under the United States Sentencing Guidelines by attributing to him the entire weight of each pill rather than calculating the amount of the controlled substance per pill, and (3) erred by failing to submit the weight of the controlled substance to the jury for a factual determination beyond a reasonable doubt in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). We have jurisdiction over this appeal pursuant to 28 U.S.C. S 1291. For the r easons that follow, we will affirm the conviction and sentence.

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